DA keeping heat on pot distributors

Prosecutors pressing on despite recent acquittals

SAN DIEGO COURTS  Medical marijuana activists may feel momentum is on their side with two recent acquittals by San Diego juries of cannabis providers, but the county District Attorney’s Office is not slowing down.

On Friday, Donna Lambert, an outspoken advocate who is part of a medical marijuana collective in San Diego, pleaded not guilty to new allegations filed against her — 13 months after she was charged with seven counts of illegal drug sales, and one week after marijuana collective operator Eugene Davidovich was cleared of four drug sales and possession charges by a jury that deliberated for less than four hours.

That swift verdict came four months after another jury acquitted Kearny Mesa medical marijuana dispensary manager Jovan Jackson of illegally selling the drug.

Lambert now faces a charge that she possessed a firearm during the commission of a felony. When police raided her San Diego home in February 2009, they found two guns, both registered and legal.

Outside court, Lambert seethed at the timing of the new charge.

“This is a direct response to the two losses they’ve had,” she said. “It’s an attempt to intimidate me.”

Deputy District Attorney Steve Walter, chief of the office’s narcotics unit, said the timing of the new charge was simply coincidental. He said in court that the evidence that Lambert had guns in her home came out at her preliminary hearing last year, but was not added to the charge until now because of what he termed an oversight.

Lambert’s trial will be the next big showdown between medical marijuana supporters and San Diego County prosecutors, who have taken an aggressive stance under District Attorney Bonnie Dumanis in charging operators of collectives and dispensaries who they say are not operating within the law.

Despite the recent setbacks, the office is not reassessing its position.

“We take everything that happened in those two cases into account and make whatever adjustments we need to,” Walter said outside court Friday. He added that the two jury verdicts should not be interpreted as a widespread rejection of the office’s approach to prosecuting medical marijuana cases.

“It’s just too early to say,” Walter said. He added that while the verdicts are disappointing, prosecutors do not stop filing charges in a specific type of case based on one or two verdicts.

And that is distressing to advocates, lawyers and some legal experts.

“I know defendants and their lawyers who have been trying to persuade the DA’s office to consider dismissing their charges, and they have not dismissed any of them yet,” said Lance Rogers, ﻿a San Diego defense lawyer who represented Jackson at his trial.

California voters approved the use of medical marijuana under Proposition 215 in 1996. But the law is vague on a number of points, such as how patients can obtain or transport the drug. It also is unclear what the precise meaning of a marijuana collective or cooperative is. Jurors in both recent trials said that vague aspect of the law played a key role in their decision.

In 2008, the state Attorney General’s Office issued a set of guidelines on how patients could legally grow and distribute the drug, but the interpretation and enforcement of those guidelines vary widely around the state.

In San Diego County, Dumanis has taken a very narrow interpretation of the medical marijuana law, said Alex Kreit, a law professor at Thomas Jefferson School of Law and chairman of the Medical Marijuana Task Force in the city of San Diego.

He said local prosecutors have a “very narrow view” of what constitutes a collective or cooperative. Under their theory, every member of the collective must contribute labor toward growing the crop in order to use it, Kreit said.

That interpretation is not shared by most other counties in the state, he said. Moreover, juries do not seem to accept it.

“They’ve taken this really unusual, restrictive view of what the state law allows for, and both times that they’ve gone into court with this unusual interpretation, it’s been quickly rejected by juries,” Kreit said. “I’m surprised they’re not reassessing their view.”

Lambert is charged with providing marijuana to an undercover police detective who was posing as a medical marijuana patient as part of a large investigation dubbed Operation Green Rx.

The detective obtained a state driver’s license under a fictitious name and got a doctor’s recommendation for the drug by using a fake ailment.

Lambert was scheduled to go on trial April 13, but that was postponed Friday until June. One of her lawyers, Mara Felsen, said that even with the acquittals of Jackson and Davidovich, medical marijuana activists are disheartened that they appear not to have influenced the DA’s office.

“They’ve made it abundantly clear they don’t read anything into these losses at trial,” Felsen said. “They continue to say, ‘We are fighting the good fight,’ and they are going to keep doing it.”